ex-, USMC

Current Discharge and Applicant’s Request

Applicant’s Request:     Characterization change to:
         Narrative Reason change to:

Summary of Service

Prior Service:
Inactive:        USMCR (DEP)      20040220 - 20040425     Active: 

Period of Service Under Review:
Date of Current Enlistment: 20040426    Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20081216     Highest Rank:
Length of Service: Year(s) Month(s) 03 Day(s)
Education Level:        AFQT: 55
MOS: 0621
Proficiency/Conduct Marks (# of occasions): () / ()   Fitness Reports:

Awards and Decorations (per DD 214):     Rifle (2) (Iraq)

NJP:

- 20070726:      Article (Absence without leave)
         Article (Failure to obey order or regulation)
         Awarded: Suspended: Vacated 20071003

SCM:

SPCM:

- 20080417:      Article (Absence without leave; 20070904-20080229, 178 days)
         Sentence: CONF 75 days (20080303-20080420, 49 days)
         CA: The sentence is approved and, except for the Bad Conduct Discharge, will be executed, but the execution of that part of the sentence extending to all confinement in excess of sixty (60) days is suspended for the period of confinement served plus (12) twelve months thereafter, at which time, unless sooner vacated, the suspended portion will be remitted without further action

CC:      Retention Warning Counseling:

NDRB Documentary Review Conducted (date):        20100722
NDRB Documentary Review Docket Number:   MD09-02441
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.






Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “MARCORSEPMAN 1105”

The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

Types of Documents Submitted/reviewed

Related to Military Service:
         DD 214:           Service/Medical Record:           Other Records:  

Related to Post-Service Period:
         Employment:               Finances:                 Education/Training:     
         Health/Medical Records:           Rehabilitation/Treatment:                 Criminal Records:       
         Personal Documentation:           Community Service:                References:     
         Department of VA letter:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

Pertinent Regulation/Law

A. Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURT-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications .

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1.       The Applicant seeks government employment and veteran’s benefits to include GI Bill educational assistance.
2.       The Applicant contends that his discharge should be upgraded because it has been six years since his discharge.
3.       The Applicant contends that his in-service conduct prior to his reporting to his exiting unit warrants consideration for clemency.
4.       The Applicant contends youth and immaturity contributed to his misconduct.
5.       The Applicant contends his misconduct was the result of his not knowing how to handle his situations at the time.

Decision


Date: 20150512           Location: Washington D.C.        Representation:

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .

Discussion

As a result of the Applicant’s in-service diagnosis of PTSD, in accordance with U.S. Code, Title X, Section 1553 (d)(1), the Naval Discharge Review Board included a member who is a physician, clinical psychologist, or psychiatrist. In accordance with section 1553 (d)(2), the service secretary expedited a final decision and accorded the case sufficient priority to achieve an expedited resolution. The Applicant’s service record documents completion of a deployment in Iraq from July 2006 to February 2007, conducting combat service support operations in support of Operation IRAQI FREEDOM.

The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, is authorized to change the character of service and the reason for discharge if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. In response to the Applicant's clemency request, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. The Applicant’s record of service included for of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, one specification) and Article 92 (Failure to obey order or regulation, one specification) and for of the UCMJ: Article 86 (Absence without leave, one specification). Based on the Applicant's conviction and sentence at a special court-martial, he was reduced in rank to E-1, confined, and separated with a BAD CONDUCT characterization of service in accordance with the conditions set forth in his pre-trial agreement. Matters of propriety related to the conduct of a punitive court-martial (e.g., Special Court-Martial) are addressed through the appellate review process by the Navy-Marine Corps Court of Criminal Appeals or through further petitioning for a review by the Court of Appeals of the Armed Forces. On 17 April 2008 the Applicant initiated a request for clemency from the Naval Clemency and Parole Board via the Commandant of the Marine Corps. The Naval Clemency and Parole Board completed their review of the Applicant’s case and found no clemency was warranted. The Navy-Marine Corps Court of Criminal Appeals reviewed the Applicant’s case and affirmed the decision on 30 September 2008. The Applicant’s discharge was executed on 16 December 2008 upon completion of appellate review as annotated on his DD Form 214.

: (Nondecisional) The Applicant seeks government employment and veteran’s benefits to include GI Bill educational assistance. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge; or, in the case of discharges awarded at a court-martial, matters concerning clemency. Additionally, the U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

The NDRB noted that the Applicant’s DD Form 293 (issues statement) from his 2009 request to this board included the Applicant’s request for an upgrade to access mental health care treatment through the VA due to PTSD. The NDRB cannot grant a change based solely on this issue; however, the Applicant should be aware that the VA has announced special VA enrollment access for PTSD and mental health treatment to combat veterans discharged under other than dishonorable conditions. Effective Jan. 28, 2008, combat veterans discharged from active duty on or after Jan. 28, 2003 are eligible for combat veteran enhanced eligibility and enrollment placement into Priority Group 6 (unless eligible for higher enrollment Priority Group placement) for 5 years post discharge. Additionally, the VA determines the eligibility for enrollment in its programs - independent of the Applicant’s characterization of service as determined by the Marine Corps. The Applicant, as a combat veteran, is encouraged to contact his local VA affairs representative for more information and may request a review of service and determination of benefits from the VA. Alternately, he may call 1-877-222-8387 or visit the following website for more information: http://www4.va.gov/healtheligibility/Library/pubs/CombatVet/CombatVet.pdf .

: (Decisional) () . The Applicant contends that his discharge should be upgraded because it has been six years since his discharge. The NDRB reviews the circumstances of an Applicant’s discharge individually, on a case-by-case basis. There is no law or regulation that authorizes a discharge to be upgraded after any set period of time. The NDRB cannot and does not upgrade discharges simply due to the passage of time. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge; or, in the cases of punitive discharges awarded by court-martial, matters concerning clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. In response to the Applicant's clemency request, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. Regulations permit relief based on clemency if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Services. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the Naval Services. A preponderance of the evidence reviewed supports the conclusion that the Applicant committed a serious offense, that separation from the Marine Corps was appropriate, and that a BAD CONDUCT DISCHARGE was warranted. Clemency denied.

: (Decisional) () . The Applicant contends that his in-service conduct prior to his reporting to his exiting unit warrants consideration for clemency. The Applicant was punitively separated as a result of a special court-martial and not separated upon expiration of enlistment or fulfillment of service obligation. The characterization of service was determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation. Other considerations were given to the member’s length of service, grade, aptitude, and physical and mental condition. Based on the Applicant’s record of service, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Marine Corps, and the awarded characterization of service was warranted. Clemency denied.

4: (Decisional) () . The Applicant contends youth and immaturity contributed to his misconduct. While the Applicant may feel his youth and immaturity were the underlying causes of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. The NDRB recognizes that serving in the military is challenging. Most servicemembers, however, serve honorably and therefore earn their Honorable discharges. In fairness to those Marines and Sailors who served honorably, Commanders and Separation Authorities are tasked to ensure that undeserving servicemembers receive no higher characterization than is due. The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances. Clemency denied.

5: (Decisional) () . The Applicant contends his misconduct was the result of his not knowing how to handle his situations at the time. The NDRB recognizes that serving in the military is challenging. Most servicemembers, however, serve honorably and therefore earn their Honorable discharges. In fairness to those servicemembers, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. The NDRB requested all records of medical treatment, both active duty and post-service, from the VA. The records received from the VA documented the Applicant’s evaluation and diagnosis of PTSD related to his combat service to Iraq before he committed the act of misconduct that lead to his discharge. The Applicant’s record of trial indicates his PTSD diagnosis and combat service were considered during the sentencing phase of deliberation. Though the Applicant may feel that he did not know how to handle his situations at the time, the record reflects willful misconduct that demonstrated he was unfit for further service. The evidence of record did not show that the PTSD was a sufficient mitigating factor to excuse the Applicant’s conduct or accountability concerning his actions. After an exhaustive review, the NDRB determined that PTSD did not mitigate the Applicant’s misconduct. The Applicant’s significant period of unauthorized absence was a conscious decision to violate the tenants of honorable and faithful service. Clemency denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall remain BAD CONDUCT DISCHARGE and the narrative reason for separation shall remain .

The Applicant is not eligible for further reviews by the NDRB. The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm . The Applicant is directed to the Addendum for additional information.

ADDENDUM: Information for the Applicant

Complaint Procedures : If you believe the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC 20301-4000. You should read Enclosure (5) of the Instruction before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil . ”

Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge. Representation at a personal appearance hearing is recommended but not required. There are veterans organizations such as the American Legion and the Disable d American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review.

Service Benefits: The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Employment/Educational Opportunities : The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the BCNR can make changes to reenlistment codes. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons. Only the BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered during Board reviews. Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate in-service misconduct was an aberration and not indicative of the member’s overall character.

Issues Concerning Bad-Conduct Discharges (BCD ): Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership: The names and votes of the members of the NDRB Board are recorded on the original of this document and may be obtained from the service records by writing to:

Secretary of the Navy Council of Review Boards
Attn: Naval Discharge Review Board
720 Kennon Street SE Rm 309
Washington Navy Yard DC 20374-5023